Friday, January 18, 2008

The US Supreme Court has decided against hearing the appeal of Brewster Kahle challenging the constitutionality of repeated Congressional extension of copyright term based on the impact of such extensions on orphan works i.e. those with no identifiable copyright owner. It is hardly surprising since the case was an attempt to revive the basic challenge raised by the Eldred v Ashcroft case and rejected by the Supreme Court in 2003.

"The U.S. Supreme Court has declined to hear the appeal of Kahle v. Ashcroft, brought by Internet Archive and Open Content Alliance founders Brewster Kahle and Rick Prelinger in 2003, which challenged the constitutionality of the current copyright regime. Although not unexpected, the Supreme Court's refusal comes after a recent ruling by the 10th Circuit Court of Appeals raised hopes of a review and lets stand the Ninth Circuit Court of Appeals' rejection, effectively ending the case.

The Kahle suit was launched in the wake of the unsuccessful 2003 Eldred v. Ashcroft case, which challenged Congess's extension of copyright terms. In that ruling, the Supreme Court held that changes by Congress to the "traditional contours" of copyright law warranted a First Amendment review. Kahle v. Ashcroft contended that Congress's sweeping changes to copyright law in 1976 were enough of a change in the "contours of copyright" to require review."

Larry Lessig's first ever courtroom victory on technical and procedural issues in the Golan case last autumn had however raised some slim hopes that the courts might be prepared to start reining in the worst excesses of extensions to intellectual property laws.

Thursday, January 17, 2008

What a great project. A terrific combination of new technology and old to make a tremendously valuable resource available to anyone with an interest in copyright and a computer connected to the Net. The organisers of the project are holding a conference in March.

This two day conference is the culmination of a research project involving the creation of a digital resource concerning the history of copyright in five key jurisdictions; France, Germany, Italy, the UK and the US, for the period before 1900. The project involves the selection of certain key documents, their digitisation, transcription, and translation. The project will create a free electronic archive of primary sources from the invention of the printing press (ca1450) to the Berne Convention (1886): in facsimile and transcription, translated and key word searchable. The documents will include statutes, materials relating to legislative history, case law, tracts, and commentaries. Editorial headnotes will provide context. The project is entirely publicly-funded by the Arts and Humanities Research Council and benefits from an advisory board of internationally-recognised experts in relevant fields. When complete, the digital resource will be hugely valuable to scholars from all disciplines interested in the history of copyright. More information about the project is available at Primary Sources on Copyright History.

"In order to ensure that crimes of terror are prevented, and that those who attempt to commit those acts go to prison, the government has substantially increased funding for police and counter-terrorism.

To ensure that police and security services have the powers they need to fight back against the threat of terrorism, the government will soon introduce a counter-terrorism bill that gives them new legal rights.

Included in that act will be new or expanded powers related to:

gathering and sharing information about terrorist suspects

post-charge questioning of suspects

tougher sentencing for offences tied in to terrorism

the seizure and forfeiture of terrorist cash, property and other assets"

It doesn't say it in the Home Office press release about the speech but she emphasised her desire to have educational institutions inform the authorities of and crack down on unacceptable or extremist views.

Documents released in the High Court on Friday 21 December 2007 indicate that the Serious Fraud Office (SFO) investigation into BAE's Saudi arms deals was dropped only after the then Prime Minister Tony Blair sent a personal minute to the Attorney General Lord Goldsmith. They show that Goldsmith did not believe that the case should be dropped in response to alleged Saudi threats to withdraw intelligence and security co-operation.

The documents are a witness statement from the Director of the Serious Fraud Office, Robert Wardle, and nine redacted (words and sentences excluded) typed-up letters between the Prime Minister and/or Cabinet Office (the government department supporting the Prime Minister) and the Attorney General (which superintends the Director of the Serious Fraud Office) dating from December 2005 to December 2006.

The documents were released during a 'Directions Hearing' at the High Court to prepare for a judicial review brought by The Corner House and Campaign Against Arms Trade (CAAT) against the UK Government's decision to cut short the SFO investigation into alleged corruption by BAE Systems in recent arms deals with Saudi Arabia.

Demos's report on National Security for the 21st Century (pdf, 669 KB) was published just before Christmas. (Thanks to Bruce Schneier for the link) It has some radical suggestions for changing the UK's approach to security threats. From the executive summary and recommendations:

"The British government lacks a clear and coherent view of the natureand priority of risks1 to the United Kingdom.The national security architecture is flawed in its design. Thegovernment remains structured around functions and services withseparate budgets for defence, foreign affairs, intelligence anddevelopment. Whitehall departments, intelligence agencies and thepolice forces that make up the security architecture have changed verylittle in the past two decades, despite the end of the Cold War and theattack on the World Trade Center in 2001.This model of government may have suited the securityenvironment of the Cold War when the UK faced a threat to itsnational survival but the complex and uncertain securityenvironment demands a fundamental review of how government isorganised. This is especially true if government is to respond to‘wicked’ problems, issues that are unbounded in time, scope andresources. The common, unifying, external threat of nuclear war hasbeen replaced by a plethora of security challenges such as traffickingand organised crime, international terrorism, energy security,pandemics and illegal immigration. They are dangers that are present,but not clear.The government remains faced with a set of problems it cannotsolve on its own. In order to respond to the new security paradigm,the UK’s security architecture must adapt, not just in terms ofprocesses and structures but in the mindsets of ministers and civilservants. At the same time, it must develop close relationships with its‘strategic partners’, the private sector and the wider public, whichraises further challenges of transparency, information sharing andtrust.This pamphlet sets out a definition of and an approach to ‘nationalsecurity’, a concept understood by some as an abstract notion relatingto the ‘condition of the state’, and referred to in security andintelligence legislation. It argues that the concept of national securitycan serve a more vital role, as a principle for organising government.The pamphlet draws on reforms and innovations from governmentselsewhere in Europe and the United States and suggests some radicaland innovative ideas on which to shape the future of the nationalsecurity architecture.Its core argument is that while the UK government has been ableto ‘muddle through’ by creating new units within departments, mergeteams and allocate more resources for agencies to expand, the presentand future security environment urgently demands a more integratedand strategic approach. Tinkering with the machinery will continueto pay short-term dividends but it will only ever achieve marginalimprovements. Long-term success must be based on a more inclusive,open and holistic approach to national security...Part 2 of the pamphlet outlines how the government can transformitself in response to the challenges identified in the pamphlet. Thechanges revolve around three essential principles of adaptation ingovernment: the need for a holistic approach to national security, basedon systems thinking, which allows individuals, agenciesand departments to take a much broader perspective thannormal; this includes seeing overall structures, patternsand cycles in systems, rather than identifying only specificevents or policy options the creation of an open and transparent national securityarchitecture for ministers, civil servants and thegovernment’s strategic partners – the private sector andthe wider public a transformation of the national security architecturebased on the principles of public value, an intellectualframework for reform in government that, although stillin its infancy, has huge potential for changing the way inwhich the government measures its performance andmaintains the trust and confidence of society...

Recommendations

National security strategy1. A national security strategy has the potential totransform the way government approaches issuesof national security but the development of a strategymust be comprehensive and supported across thepolitical spectrum,within Whitehall and by thepublic.2. While the publication of a national security strategy iswelcome the government should go further and create anational security secretariat, based in the Cabinet Officeand subsuming the Overseas and Defence Secretariat,Civil Contingencies Secretariat and parts of the Securityand Intelligence Secretariat.3. In collaboration with the prime minister and cabinet thenational security secretariat should identify three to fivemost serious and immediate priorities for UK nationalsecurity. These might be serious and organised crime,counter-proliferation, counter-terrorism and energysecurity.

System reform4. The government should create networks acrossWhitehall on issues such as ‘governance and rule of law’,‘trade and diplomacy’, ‘climate change’ and ‘securitysector reform’. This will require changed departmentalstructures based more heavily on teams and projects,which are able to call on expertise from outside. Thesenetworks will be the responsibility of a senior civilservant, accountable to both a minister and Parliament.5. Clarification of ministerial roles on issues of nationalsecurity is needed. At present too many key policy areasor departmental units in government have little or noministerial leadership. This is not a call for a newministerial post in the Cabinet Office on security butrather a plea for better ministerial oversight on a range ofpolicy areas such as security sector reform and conflictprevention and on units that fall between departmentssuch as the new Stabilisation Unit.6. Public value must become the intellectual framework forpublic services and national security.7. A national training centre should be created for theintelligence agencies and law enforcement.8. Based on the current IT programme SCOPE, thegovernment should go further and create a similarsystem of information-sharing software based on thesuccessful Intellipedia in the US.

Accountability and oversight9. The post of ‘spokesperson on national security’ shouldbe created and based in a new national securitysecretariat.10. The government should make public an annual threatassessment.11. A quadripartite parliamentary select committee onnational security should be created – bringing togetherexisting select committees that focus on UK nationalinterests, security and defence policy. The governmentmust allocate more resources to parliamentary selectcommittees including a panel of national security expertsNational Security for the Twenty-first Centurywho can be called on to undertake investigations inspecialist areas.12. The Intelligence and Security Committee (ISC) shouldnot become a parliamentary select committee. Instead theISC should be strengthened by recruiting a team ofindependent investigators while more resources shouldbe provided for the ISC secretariat."

Freeman Dyson thinks teenagers are going to be engaged in biological and genetic hacking in the none too distant future.

" DYSON: Because von Neumann thought that he was dealing with unreliable hardware, he made another mistake. The problem was how to write reliable software so as to deal with unreliable hardware. Now we have the opposite problem. Hardware is amazingly reliable, but software is not. It's the software that sets the limit to what you can do.

My prediction or prognostication is that the same thing is going to happen to biotech in the next 50 years, perhaps 20 years; that it's going to be domesticated. And I take the example of the flower show in Philadelphia and the reptile show in San Diego, at both of which I saw demonstrations of the enormous market there is for people who are skilled breeders of plants and animals. And they're itching to get their hands on this new technology. As soon as it's available I believe it's going to catch fire, the way computers did when they became available to people like you.

It's essentially writing and reading DNA. Breeding new kinds of plants and trees and bushes by writing the genomes at home on your personal machine. Just a little DNA reader and a little DNA writer on your desk, and you play the game with seeds and eggs instead of with pictures on the screen. That's all.

LLOYD: One of the reasons computers became ubiquitous is the phenomenon of Moore's Law, where they became faster and more powerful by a factor of two every two years. Is there an equivalent here?

DYSON: Exactly the same thing is happening to DNA at the moment. Moore's Law is being followed as we speak, both by reading and writing machines.

LLOYD: At roughly the same rate?

DYSON: Yes.

VENTER: It's happening faster. I had this discussion with Gordon Moore and I said that sequence reading and writing was changing faster than Moore's Law, and he said, but it won't matter, as you're ultimately dependent on Moore's Law.

DYSON: I agree with that. At the moment it's going fast.

CHURCH: Unless we build bio-computers—right now the best computers are bio-computers.

BROCKMAN: It took two weeks for a 17-year-old to hack the iPhone—and here we're talking about DNA writers and readers. That same kid is going to start making people.

DYSON: That's true, the driving force is the parents, not the scientists. Fertility clinics are a tremendously large and profitable branch of medicine, and that's where the action is. There's no doubt this is going into fertility clinics as well. For good or evil, that's happening.

BROCKMAN: But isn't this a watershed event because of our ideas about life? What's possible will happen. What will the societal impact be?

DYSON: It's not true that what's possible will happen. We have strict laws about experimenting with human subjects.

BROCKMAN: You can't hack an iPhone either; certain activities along these lines are illegal.

DYSON: But it's different with medicine. You do get put in jail if you break the rules.

BROCKMAN: Not in Romania.

DYSON: There are clear similarities but also great differences. Certainly it is true that people are going to be monkeying around with humans; I totally agree with that. But I think that society will put limits on it, and that the limits are likely to be broken from time to time, but they will be there."

You've got to laugh at the surveillance silly season stories like this one. The chink in US government's mass surveillance program might well be irritated phone companies cutting off FBI and other wiretaps due to unpaid phone bills!

"The FBI has hit a major hang-up in its wiretapping surveillance program: failing to pay its phone bills on time.

Facing tens of thousands of dollars in unpaid bills, telephone companies have cut off FBI wiretaps used to eavesdrop on suspected criminals, a Justice Department audit released Thursday shows. In one office alone, unpaid costs for wiretaps from one phone company totaled $66,000.

And in at least one case, a wiretap used in a Foreign Intelligence Surveillance Act investigation "was halted due to untimely payment," the audit found. FISA wiretaps are used in the government's most sensitive and secretive criminal and intelligence investigations, and allow eavesdropping on suspected terrorists or spies."

It gives a new twist to the idea that the piper must be paid. There's also a great quote in the piece from an ACLU lawyer:

"It seems the telecoms, who are claiming they were just being 'good patriots' when they allowed the government to spy on us without warrants, are more than willing to pull the plug on national security investigations when the government falls behind on its bills," said former FBI agent Michael German, the ACLU's national security policy counsel. "To put it bluntly, it sounds as though the telecoms believe it when FBI says warrant is in the mail but not when they say the check is in the mail."

Apparently Ford's lawyers are leaning on the 9000 member 'Black Mustang Club', which will not now (scroll about 3/4 of the way down the page) be producing a calendar including pictures of club members' black Mustang Ford cars, since Ford claim to own the pictures and much else besides.

"I got some more info from the folks at cafepress and according to them, a law firm representing Ford contacted them saying that our calendar pics (and our club's event logos - anything with one of our cars in it) infringes on Ford's trademarks which include the use of images of THEIR vehicles. Also, Ford claims that all the images, logos and designs OUR graphics team made for the BMC events using Danni are theirs as well. Funny, I thought Danni's title had my name on it ... and I thought you guys owned your cars ... and, well ... I'm not even going to get into how wrong and unfair I feel this whole thing is as I'd be typing for hours, but I wholeheartedly echo everything you guys have been saying all afternoon. I'm not letting this go un-addressed and I'll keep you guys posted as I get to work on this.

I'm sorry, but at this point we will not be producing the 2008 BMC Calendar, featuring our 2007 Members of the Month, solely due to Ford Motor Company's claim that THEY own all rights to the photos YOU take of YOUR car. I hope to resolve this soon, and be able to provide the calendar and other BMC merchandise that you guys want and deserve!"

The thing is that although it is pretty stupid commercial practice to annoy a dedicated group of customers likely to put continuing long term repeat business your way, Ford have a fairly strong case under US IP law as it currently stands - calendar sales, which they have not authorised, featuring pictures of Ford vehicles. Yet another example of ordinary people not liking what they see when IP is brought to their attention in a rather in-your-face unfortunate kind of way. Witness some of the contributors to the BMC forum:

"Wow I cannot believe what I am reading. I thought we were making the payments and that when I take a picture of MY mustang I own the rights to the picture not them and if I want to publish a picture of my car it is mine. This is just crazy."

"*utterly speechless*

Just simply amazing. I would think they'd be flattered that we were so happy to be showing off our cars and getting them some publicity in the process."

"This is quite possibly the most absurd thing I've ever heard. the NOTION that after paying THOUSANDS of dollars, I'm not authorized to create artwork using pictures of what's rightfully mine just blows my mind!Ford has another think coming if they think they're just going to go around squashing all the 'little men', who do nothing but SUPPORT them...

I don't know about you guys, but when I bought the Bullitt, I didn't see anything in the contract that said Ford would maintain "intellectual rights" to any pictures I might eventually take of the vehicle. BUMP that!"

This latter contributor may well own his car but I'm afraid the law says he is "not authorized to create artwork using pictures" which include Ford's trademarks.